Appendix 3: Safeguarding Respect for Victims’ Human Rights

Responses to question five: safeguarding rights to dignity

Trauma-informed delivery

One respondent gave a detailed response to this question which has been signposted to the SG for consideration. They highlighted the experiences of LGBTI victims and suggested providing choice of in the sex of the practitioner was key crucial to ensuring victims’ right to respect and dignity.

Another discussed the experiences of disabled women, and observed that based on evidence that in general, women prefer to be seen by a female practitioner, the same must be assumed for disabled women who may not be able to articulate that request.

One respondent noted their agreement with the statement in the consultation document that the provisions that currently sit within existing legislation should be implemented, giving the example of section 9 of the Victim and Witnesses (Scotland) Act 2014.

Wider discussions on safeguarding victims’ rights

Examples

One respondent noted ‘forensic evidence could be collected and held until the victim is ready to decide whether to take legal action’.

One observed ‘giving full legislative powers to health boards may increase the likelihood of important evidence being gathered which could become vital to later criminal prosecutions. This will support a right to justice as outlined under Article 13 of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD)’.

However, one respondent reflected on the increased interplay resulting from the legislation between health and criminal justice agencies, highlighting ‘it is crucial that no conflict of interest is allowed to arise between the need to provide care for the victim and the need to obtain evidence to secure a criminal prosecution’.

Singular responses

One respondent noted that they support the development of forensic medical services which are healthcare and recovery focused. They believe this will encourage and enable more victims to report and seek support.

One respondent called for the ‘same treatment for male, female, trans’ and also urged ‘don't judge victims for being drunk’.

Children and young people

One respondent discussed the need for a joined-up approach including a paediatrician and an FMS practitioner during an examination process due to the complex nature of examination for children and young people. They observed that this added complexity may make it difficult to provide a choice in the sex of both practitioners.

Another respondent felt that victims should have a right to choose the sex of their FMS practitioner but noted that it should not be assumed that a female examiner is always preferable, depending on the sex of the child or young person’s abuser.

One respondent discussed broader aspects of criminal proceedings, suggesting provision of trauma-informed healthcare could be an important route to ensuring that children and young people have access to appropriate support, for example advocacy and mental health services, thus safeguarding rights to dignity and respect.

Another respondent referenced the material cited in the consultation, observing that it does not include evidence about the preference of children and young people about the choice of the sex of practitioners; they called for more research into young peoples’ preferences.

Responses to question six: potential impacts on human rights

Vulnerable Groups

Four alluded to the UN Convention on the Rights of Persons with Disabilities (CRPD), with Articles 12 and 16 highlighted as important.

One referenced European Convention on Human Rights (ECHR) Article 8 and suggested it should be considered when drafting legislation.

Another mentioned the Human Rights Act 1998.

One called for a statement of principles in the legislation which draws on human rights obligations such as the Adults with Incapacity (Scotland) Act 2000 and the Mental Health (Care and Treatment) (Scotland) Act 2003.

One respondent discussed a range of human rights commitments to consider in relation to the rights of disabled women, including the UN Committee on the Elimination of all forms of Discrimination Against Women (CEDAW).

Another suggested existing legislation such as the Adults with Incapacity (Scotland) Act 2000 could be replicated. They also called for legislation arising out of the First Minister’s Advisory Group on Human Rights Leadership to be considered in relation to forensic medical services.

Mention of Health Boards in the discussion on rights

One expressed concern that the proposals for forensic medical services may absorb disproportionate resources compared to other areas of health care.

Another described doubt that it will be possible to provide victims with a choice in the sex of the examining practitioner, particularly within smaller health boards.

One respondent made a general statement about a need for health boards to increase patient access to services, noting that this would positively impact individuals, families and society. They highlighted the importance of considering locations for hubs and spokes, assuring they are accessible via public transport to ensure self-referral is accessible for those on a low income.

One called for multi-agency guidance to support the implementation of the legislation, noting this would help to address differences and stipulate and clarify roles of agencies.

Minority groups and human rights

One discussed the experience of transgender women, and the risk of discrimination they may face if they have not yet received a gender recognition certificate. They also discuss the need for services to be sensitive to religious or cultural beliefs.

Two reflected on the importance of equal rights for LGBTI people. One of these discussed the potential impacts of the consultation proposals on those with the protected characteristics of sexual orientation or gender reassignment. They provided a detailed discussion about the high risk of sexual violence, and listed the elements of the proposals that are imperative to upholding the rights of LGBTI communities.

Another respondent discussed the importance of including the lived experience of victims from diverse backgrounds.

Accessibility

One suggested that the current situation regarding access to forensic examination was a human rights issue, as not all victims have access without lengthy travel.

Another felt that the proposed hub and spoke model will provide equitable access to forensic medical services.

One said it might not be possible for victims within smaller health boards to have a choice in the sex of the examining practitioner as they may rely on examiners travelling to meet demand.

One respondent noted that language and communication are human rights and should be considered within the proposed legislation.

Another referenced people with PMLD and said there is currently a lack of support and services which can result in trauma to those individuals and their families and carers.

One respondent signposted their response to the previous question in which they provide a detailed discussion about vulnerable groups and their right to an ‘appropriate adult’ who can assist with communication needs.

One respondent referenced their response to the previous question in which they discussed the rights of children and young people and in particular that the child’s best interests must be the priority in all decisions that affect children.

Another suggested the legislation will address current inequity in health care following rape and sexual assault.